Friendly character

in the oc

of an ally.

There is the same mischief likely to accrue to the belligerent Sovereign from such intercourse, and consequently the same breach of duty on the part of a neutral or a subject, if he should attempt to hold any such intercourse. Accordingly we find that in the British Order in Council of 15 April 1854, whereby Neutrals and British Subjects were permitted to transport enemy's property on board their vessels without fear of its capture, unless it should be Contraband of War, an express exception was made in respect of the destination of such cargoes on board of English vessels to ports in the possession of an enemy, namely, "that the British vessel should not under any circumstances whatsoever, either under or by virtue of this Order or otherwise, be permitted or empowered to enter or communicate with any port or place, which shall belong to or be in the possession or occupation of her Majesty's enemies."

$165. On the other hand it is competent for a may attach belligerent State to recognise the suspension de facto to places of the authority of an enemy over a province or cupation colony, which has successfully revolted from the ruling or parent State. Thus the inhabitants of several portions of the island of St. Domingo had revolted against the Empire of France, at such time engaged in war with Great Britain, and the insurgent negroes, who were in actual occupation of those portions of the island, had detached them from the authority of France, and maintained, within those portions at least, an independent government of their own. Under such circumstances a British Order in Council was issued, permitting "British vessels to go to such ports and places in the island of St. Domingo as are not or shall not be under the dominion, and in the actual possession of his Majesty's enemies." Lord Stowell, in construing this Order, held that the legal meaning

66

66

of 'dominion' implies rightful possession and authority; as applied to private property it signifies not merely possession, but possession with rights of property, that of which the person is dominus; and as applied to public possession, it is the right of legal authority. Accordingly as the British Government had declared there were parts of the island, which were neither in the possession nor in the dominion of France, trade with such parts would be innocent. "It is not necessary," he observed, that this declaration should amount to a perpetual recognition of the independence of those places, as in the case of a formal and permanent Cession. It is sufficient that there is a rightful and acknowledged suspension of the authority of France, that will of itself exempt the parties from the penalty of trading from an enemy's colony 5." It is however not for the Prize tribunals, but for the Executive Government of a Nation, to decide, when the inhabitants of a revolted territory are entitled to be recognised as an independent Nation. Until that decision has been made, Courts administering the Law of Nations are bound to regard the Sovereignty of the ruling or Mother State to be still subsisting of Right.

45

45 The Manilla, Edwards, p 5. 15 East, p. 81. Rose v. Himely, Johnson v. Greaves, 2 Taunton, 4 Cranch, p. 272.

p. 344. Blackburn v. Thompson,

CHAPTER IX.

Duty of Captors to bring in

ON CAPTURE AND ITS INCIDENTS.

Duty of Captors to bring in their captures for adjudication as Prize-Enemies have no locus standi in a Prize Court-What is essential to constitute capture-Forms of proceeding in Great Britain to constitute Prize Courts-Jurisdiction of Courts to distribute Prize-Absolute Control of the Crown over all capturesRecapture subject to the jus postliminii-Rule of twenty-four hours' possession-Salvage on Recapture-Practice of Great Britain and of the United States of America-Practice of France, Spain, Denmark, Sweden, and Holland-Insurable interest of British captors —Ancient practice as to prisoners of war-Modern Cartels for the exchange of prisoners-Cartel Ships-Ransom of Captures at Sea -Ransom Bills-Hostages-Modern Restraints upon RansomJoint Captures-Distribution of Prize amongst joint CaptorsCondemnation of Prizes brought into the port of an ally.

§ 166. THE object of captures at sea having been originally to make Reprisals ad damni dati modum, their cap and the right to make Reprisals ceasing upon suffiadjudica- cient security (pignoratio) having been taken to make Prize. good the damage, for which Letters of Reprisals had

tures for

tion as

been granted by the Sovereign Power, it was an usual condition of Letters of Marque and Reprisals that the captures should be brought into port and submitted to the adjudication of a competent Court, in order that the validity of each capture should be determined, and permission be granted or refused to the captor to convert the property to his own use. Hence very different rules have been established in

regard to maritime captures from those which are applicable to captures on land. The nature of hostilities, which are carried on within an enemy's territory, requires that an invading army should not encumber itself with booty; and accordingly the Commander of an army carries with him authority to make immediate enquiry, and to determine summarily all questions of title to booty.

In very early times the Admiral of a fleet of armed cruisers determined in like manner the question of Prize or no Prize summarily, or, as it was said, velis levatis. The capturing vessel conducted its capture to the Admiral-Ship, upon the deck of which enquiry was made by inspecting the papers of the captured vessel and interrogating her master and crew, and thereupon the vessel and her cargo were adjudged to be good prize, or were forthwith allowed to pursue their voyage. Under the present practice of warfare upon the High Seas, it is the duty of the captors to send their captures to a convenient port of their own country or of an allied country, and to submit them immediately for enquiry and adjudication before a lawfully constituted Prize Court. If the captors should fail to do this, it is competent for the party who claims the ship and cargo to apply to a Prize Court of the captors' country for a Monition against the captors to proceed forthwith to adjudication; in which case if the captors should neglect to appear and proceed to adjudication, the Court may condemn them to make restitution with costs, and sometimes with damages. It is immaterial in such a case whether the captors have acted in good faith or not in making the capture. "If the captor," observes Lord Stowell', "has been guilty of no wilful misconduct, but has acted from

The Acteon, 2 Dodson, p. 52.

Enemies bave no

in a Prize

Court.

error or mistake only, the suffering party is still entitled to full compensation, provided he has not by any conduct of his own contributed to the loss. The destruction of the property by the captor may have been a meritorious act towards his own Government, but still the person, to whom the property belonged, must not be a sufferer. As to him it is an injury, for which he is entitled to redress from the party who has inflicted it upon him; and if the captor has by the act of destruction conferred a benefit upon the public, he must look to the Government for his indemnity. The loss must not be permitted to fall upon the innocent sufferer."

§ 167. The personal obligation of a captor to bring his captures into port for enquiry and adjudication is founded upon the instructions, which he has received from the Government, which has authorised him to make captures. The obligation of every locus standi Government on the other hand to require its cruisers to bring their captures into port for adjudication before a competent Court of Prize rests upon the general Law of Nations. But this obligation under the common Law of Nations exists only with respect to vessels navigated under a Neutral flag, the object of the enquiry before a competent Court being to ascertain whether the captured property in each case belongs to a neutral or an enemy, and to restore the property if it belongs to a neutral, and so to restrain the captor in the eager pursuit of gain from doing injustice to innocent merchants, whereby national quarrels might arise. Enemies on the other hand have no locus standi in a Prize Court under the general Law of Nations, and they cannot claim of Right that their property upon capture by a belligerent cruiser should be taken into the port of the belligerent or his ally for enquiry and adjudication.